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Comcast sued over file sharing practices

By Ed Oswald, BetaNews

November 15, 2007, 1:05 PM

The nation's largest cable provider has been taken to court by a San Francisco man who says its efforts to throttle the bandwidth of file sharers is illegal.

Jon Hart sued the company in Alameda County Superior Court, alleging the company misleads the customer by claiming "unfettered" access to the Internet. He is seeking monetary damages for its loss, as well as class-action status.

The case is the latest to use an Associated Press report from October that seemed to confirm the company was indeed limiting the bandwidth of heavy file sharers. Hart said that while he had suspicions that Comcast was interfering, the AP report only confirmed it.

Already several public interest groups have lobbied the Federal Communications Commission to fine the company over its actions. The issues have even restarted the debate over net neutrality, which previously seemed to have died off.

Comcast itself has expressly denied blocking file-sharing. However, it has now admitted to limiting traffic of those who use programs to share files. It argues that only a small number of file sharers can degrade service quality for the entire network.

About 12.9 million subscribers nationwide call the cable provider their ISP, the second largest in the nation behind AOL.

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By M^3

posted Nov 16, 2007 - 9:59 AM

I think this is more a matter of truth in advertising. If you are going to limit speeds for certain kinds of service, state it clearly in the terms of service. If people don't like the terms, they can go to a different ISP (assuming one is available in their area). Sneaking around so you don't loose a few customers who read the TOS seems pretty foolish to me as it ends up where they are now.

Score: 0

By extremely well

posted Nov 15, 2007 - 8:12 PM

Rehash from
http://www.betanews.com/...ent_Blocking/1194021713

By extremely well posted Nov 3, 2007 - 2:07 PM

This is a lot of blah blah. There's no such thing (IN ANY BIZ) as allowing a small percentage of customers kill profits TO THE ENTIRE BIZ because they use 95% of the overall resources (bandwidth). The FCC will allow Comcast to detect/log & raise the prices for heavy bandwidth users, or kick them totally off the service. It will probably also force Comcast to state clearly in the TOS what's the maximum allowable bandwith usage per customer. That's what gonna end up happening. You need more bandwidth for more warez my sweet boy? Cough up the change for a real T1 or start hopping around from ISP to ISP...

The FCC isn't gonna make Comcast lose profits on any specific customer. If wording of how Comcast advertises its service needs to change slightly, it will, probably adding a lot of *'s and smallprint disclaimers...but come on ppl, get real: Comcast is gonna win and the heavy bandwidth users WILL MOST CERTAINLY LOSE.

Score: 0

By PhoenixPath

posted Nov 16, 2007 - 9:26 AM

++

You are as cynical as I, I see. Sucks to be one of the few realists among us, eh?

Score: 0

By Paul Skinner

posted Nov 15, 2007 - 5:23 PM

Surely this guy is walking a very loose tightrope.

How long until the RIAA have a piece of this guy?

Score: 0

By Program86

edited Nov 15, 2007 - 4:16 PM

sue those "big brother" bas*tards.

Score: 0

By Me

edited Nov 15, 2007 - 4:10 PM

Comcast, like any other business is free to list any terms they like. They can claim your home, your first born child, whatever they like. They can insist no refunds for any reason, and say you have no legal recourse. I remember Judge Wopner ruling against a store owner who said "My sign clearly states--NO REUNDS FOR ANY REASON". The good judge said-"Your sign does not change the laws that we live under, and you are subject to them. Now, go take down your sign. Judgement for the Plaintiff."

Score: 0

By Neoprimal

posted Nov 15, 2007 - 6:33 PM

The laws here are very wobbly at times. They pretend to be clear cut but they're overturned by so many judges. For example, how exactly is Apple getting away with not accepting cash for Iphones? By law a legal tender is payment that cannot be refused BY LAW - yet, they did it...I have no clue if they still are, and don't care - that was just to make a point. Many really big companies here get away with 'murder', scenerios that small businesses could never, ever get away from. It's not fair, but alas, it's how it is.

IMO, Comcast will find a way to win this case...even without true backing. It is indeed silly that people sue for everything nowadays, but in a situation like this maybe he has a point? I bet many are thinking that the only people who download/upload large files are illegal sharers, but not so. Technology has evolved and connections are faster - people are using it. Many different home brewed files can be mammoth in size - home movies, raw/uncompressed pictures, legal sound/music files, the list goes on. If you pay for a certain speed, lets oneup and say you even pay for extra speed and your files are crawling, I think you'd be upset too. Ofcourse, we can't believe EVERYTHING advertised, but they're offering faster than fast and unlimited (up to 6 or 8mb throughput), unfettered internet (no rules and regulations) access, which after something like this derails it all.

Score: 0

By Second Shadow

posted Nov 16, 2007 - 1:13 AM

"By law a legal tender is payment that cannot be refused BY LAW"

I see .... you must have not been reading Section 31 U.S.C. 5103 of the Coinage Act of 1965 lately ....

Just FYI:
http://www.treas.gov/edu...y/legal-tender.shtml#q1

Score: 0

By Neoprimal

edited Nov 16, 2007 - 4:04 PM

"By law a legal tender is payment that cannot be refused BY LAW"

I see .... you must have not been reading Section 31 U.S.C. 5103 of the Coinage Act of 1965 lately ...."

Have you? Because it actually says "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues."...in short. There's nothing referring to privately owned companies being exempted from this.

....that private companies can actually overturn that law (or be excluded from it, rather) and not accept LEGAL TENDER is actually just reinforcing my statement that the laws are, for lack of a better word, wobbly....or, contradictory, maybe that's better. There's nowhere in that specific section of the act that says anything about private companies being allowed to not accept money, but I'm sure it's in some ammendment someplace. I can understand a bus driver not accepting $100 and the like...I can't understand a company saying "Sorry, you're not allowed to pay with cash".

It's a far out thought and implausible but imagine if no private companies in the U.S accepted legal tender? What a thought. Personally it doesn't make sense to me that that is possible, but I'm reading it so it is.

Either way, thank's for the enlightenment. I've been semi-curious as to how Apple has gotten away with that and now I know, a la the U.S Treasury website.

Oh, here's the link....in case I missed an importance sentence or two.
http://law.justia.com/us.../title31/31usc5112.html

Score: 0

By Second Shadow

posted Nov 16, 2007 - 6:33 PM

Ok, ironies aside, the wording of the law may be somewhat contradictory, but the U.S. Department of Treasury's interpretation is pretty clear:
"There is, however, no Federal statute mandating that a private business, a person or an organization must accept currency or coins as for payment for goods and/or services. Private businesses are free to develop their own policies on whether or not to accept cash unless there is a State law which says otherwise."

The key aspect here seems to be the distinction between "debts, public charges, taxes, and dues" on one hand, and "goods and services" on the other ... Honestly, I also thought they must be the same thing ... apparently they're not ....

Score: 0

By extremely well

posted Nov 15, 2007 - 8:29 PM

95% of Comcast customers are happy campers, so obviously the advertising is NOT "deceiving" in the eyes of a vast majority of the customer-base. And the remaining 5% are extremely intelligent, technologically savvy individuals who simply KNOW they are abusing the network and they KNOW that a real T1 that will take their abuse happily simply costs an order of magnitute or so more than they are paying.

Comcast will win, even IF they'll have to add a few more paragraphs to the TOS legalese blahblah...

Score: 0

By Reap_r

posted Nov 15, 2007 - 4:32 PM

The issue here is not Comcast listing unfair terms, but instead acting to deliver less than a consumer has paid for without notifying that consumer, or even making it clear that this sort of action is likely by listing file sharing as a type of usage that could get their service limited or curtailed.

In the past ISP's have disconnected a consumer's broadband when their PC had a zombie and was flooding the network with spam. They notified that consumer and then turned them off due to the TOS violation. When the consumer called customer care and assured them that the problem was fixed, they were reconnected. The consumer has no case to sue them.

What if they had silently throttled the consumer's bandwidth instead of letting them know or turning them off. That would have been a different story in my mind because they would allow the consumer to continue paying for a service that they were not recieving the full measure of without notifying them. That is deceptive and closely mirrors what we see here.

Score: 0

By PhoenixPath

edited Nov 15, 2007 - 1:53 PM

Why he will lose, and lose quickly:

http://www.comcast.net/t...use.jsp?cookieattempt=1

Comcast High Speed Internet's Terms of Acceptabe Use:

Prohibited Uses and Activities:

Section vii:

"restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others' ability to send or retrieve information;"

Emphasis added to direct you to the point on which this case will be lost.

ComCast will claim that such use generates levels of traffic that impedes other users abilities to use the service.

Case closed. Can we give it a rest now?

(Section viii also can be used to disallow any such activities as well.)

Score: 0

By Reap_r

edited Nov 15, 2007 - 3:36 PM

Don't agree:

1. The isp has not made any effort to define what "generating levels of traffic sufficient to impede others' ability to send or retrieve information.." means. They certainly posses the ability to update their terms to include specific protocols or traffic levels that will cause them to make someone's service no longer unfettered.
2. They have not notified that user that they are now throttled.
3. It sounds as if they are throttling based upon the use of a specific protocol (file sharing connections) rather than some threshold of network usage.
4. If their equipment cannot handle the load of multiple dynamic connections that are generated by file sharing software, they should upgrade or make it clear that their service is not robust enough to handle certain types of usage.
5. If the customer is violating the TOS by generating too much traffic, that customer should be notified and/or dropped...not silently throttled. This consititutes a deceptive business practice in my eyes.

Score: 0

By PhoenixPath

posted Nov 15, 2007 - 3:44 PM

1. They don't need to. They never guaranteed any specific service or protocol. At most, they guaranteed a connection.

2. How are they required to? They never contracted or guaranteed any specific protocols, bandwidth, or service other than a basic connections for services such as web and email.

3. Again, no guarantee for any specific protocol.

4. They should. That in no way means they must.

5. Their denial of it is probably the only thing that could legally hurt them. The rest is people wishing they were guaranteed unlimited bandwidth/service when, in fact, they were given no such guarantee.

As a user of the internet, I would not like having any service I use throttled. As an intelligent consumer, I realize that without a contract for the services I require nor a written guarantee I cannot reasonably expect to hold anyone liable when such services are not delivered to my satisfaction.

Score: 0

By Reap_r

edited Nov 15, 2007 - 4:19 PM

You sound like a Comcast lawyer willing to accept the most lenient interpretation of this possible.
1. They did not exclude any protocols, neither did they list them specifically in any sort of guarantee. Therefore a reasonable person would be led to believe that they are allowing all protocols supported by TCP/IP and UDP/IP. In this way the courts often side with the consumer that they are not required to verify the small print or be some sort of engineer before believing that they are going to recieve what they paid for.
2. There is a contract for service between the consumer and Comcast. While there is no SLA (service level agreement/uptime guarantee) or minimum continuous bandwidth numbers, neither should they be singled out to recieve less than they paid for and that other consumers are recieving who are under the same terms based upon some arbitrary and secret standards (the use of file sharing software).
3. A protocol specific guarantee is not required in order for an average consumer to be led to believe that all commonly used protocols are supported unless mentioned. The onus here is on Comcast to provide exclusionary notices if they are providing a substantively different service than other ISP's and calling it the same thing (unlimited broadband internet access).
4. I concede that this is not a legal matter and they should upgrade but this in is more of an admonition than a legal observation.
5. We all realize that 6Mb is not unlimited, but imposing artificial and discriminatory limits based upon undisclosed criteria is quite deceptive and exposes them to the risk of being accused of unfair business practices.

Score: 0

By PhoenixPath

posted Nov 16, 2007 - 9:25 AM

I remember you now. :)

You are the one who I thought was a firm believer in the fact that all rights not limited by the Constitution are effectively guaranteed us.

That is fine. Wonderful, in fact.

But now you seem to be applying this belief to corporations. I cannot even begin to tell how much that perplexes me. You do mention that your comments aren't legal observations, but rather admonitions, so I'll choose to believe the above is laudable idealism and not a realistic view of how things are going to go down in this case.

Yes, they should have issued a statement about the packet shaping. They didn't. It is the only part of this whole deal that could possibly hurt them in court. The rest is wishful thinking. Services not guaranteed by contract, and not spelled out in such, are simply not guaranteed.

I'm not a Comcast lawyer and it's not that I am willing to accept the most lenient interpretation. I am just a cynical SOB open tot he reality that when it's us vs. the corporations the corporations usually win, and it's usually because we expected that which was never promised (though usually implied...big difference and a great marketing tool).

Score: 0

By yountmj

posted Nov 17, 2007 - 12:18 PM

Wow... well said. :)

Score: 0

By extremely well

posted Nov 15, 2007 - 8:18 PM

I highly doubt Comcast arbitrarily blocks certain ports/services... It's more likely blocking KNOWN-ILLEGAL-TRACKERS or if they don't wanna get into policing the web (even as a cost-cutting measure) then they can start blocking certain ports/services once a certain bandwidth usage is reached for the last hour, last 24 hours, last 7 days, last 30 days, whatever. They can slow you down if you get out of hand, WITH THE LAW BACKING THEM (eventually).

Yes, I also said they'll probably eventually have to clearly state under what circumstances you will get reduced performance, and possibly they'll have to notify you about it. That..does NOT mean that they'll all of a sudden stop their aggresive QoS initiative.

Score: 0

By skimore

edited Nov 15, 2007 - 2:28 PM

If comcast (OR ANY PROVIDER OF A SERVICE) sells a service 6MBx1MB do I have the right to max that 6MBx1MB 24/7??? If not what are they selling me???

So if you watch too much of their unlimited TV will I be limited? If you go to taco bell and drink too much of the unlimited drinks they will kick me out??

Come on.. if you sell something you HAVE to provide it!!! If you can't provide it the DO NOT sell it!!

If he loses this ruling can have very wide ramifications.

FYI:
Dictionary:
un·lim·it·ed (?n-l?m'?-t?d) - Having no restrictions or controls; Having or seeming to have no boundaries; infinite: an unlimited horizon. Without qualification or exception; absolute:

Maybe comcast needs to buy Webster and change the meaning of this word.

Maybe Comcast needs to hire some good network pro's to install some cisco switches that will allow for better QoS..

Score: 0

By PhoenixPath

posted Nov 15, 2007 - 3:36 PM

Good morning, sunshine.

Sleep well?

Now that you're awake, you understand that in their marketing and advertising, the term "unlimited" applies solely to the availability of the connection, and is not intended to guarantee nor should be construed to imply any guarantee regarding bandwidth, access to services, or range of protocols, right?

Also, you are aware that on a 6Mb connection, the "6Mb" refers to the maximum throughput of the connection , and is not intended to guarantee or imply a guarantee of the availability of that amount of bandwidth at any time for any duration, correct?

Perhaps, and I'm being facetious here, you should try and understand such basic concepts prior to spewing your above mental vomit all over these forums. :)

Score: 0

By fewt

posted Nov 15, 2007 - 5:17 PM

un·lim·it·ed /?n?l?m?t?d/ Pronunciation Key - Show Spelled Pronunciation[uhn-lim-i-tid] Pronunciation Key - Show IPA Pronunciation
–adjective
1. not limited; unrestricted; unconfined: unlimited trade.
2. boundless; infinite; vast: the unlimited skies.
3. without any qualification or exception; unconditional.
[Origin: 1400–50; late ME; see un-1, limited

Score: 0

By PhoenixPath

posted Nov 16, 2007 - 9:15 AM

Er....thanks? The guy above gave me a similar definition. As I replied, it applies only to the availability of the connection, but feel free to define unlimited for me one more time. Third time's a charm, right?

Score: 0

By skimore

posted Nov 15, 2007 - 5:48 PM

Hey sunshine.. Thank god for FIOS and U-verse for these poor people in comcast service area's. The telecoms will surely pickup these customers.

Comcast is pretty stupid to makes these moves at this time. They must want to downsize alot..

Score: 0

By extremely well

posted Nov 15, 2007 - 8:23 PM

Hahahahahaha

NO ISP will pick up the Comcast network abusers. NONE. Not for too long, that is. (They'll all learn the hard lesson pretty quickly though I am damn sure). FIOS shmios... There's a cost per GB dumped onto the internet (in/out). It's quite high if your customer is pushing hundreds of gigs a month. Definitely higher than $50/mo... Get freakin' real my dreaming friend. Party is OVER.

Score: 0

By dlab21

posted Nov 15, 2007 - 1:38 PM

It argues that only a small number of file sharers can degrade service quality for the entire network.
well then you have a piece of s*** service. upgrade the service or don't claim "'unfettered' access to the Internet"

Score: 0

By PhoenixPath

edited Nov 15, 2007 - 1:51 PM

Score: 0

By BajaMnstr

edited Nov 16, 2007 - 4:09 AM

I think some people are missing the boat here.
I work for an ISP and I for one am happy that comcast is doing what it is doing.
Every ISP has customers like comcast, customers that literally use 99% of their bandwidth.
It's generally accepted that the top 1% of users use 99% of bandwidth.
Now if those customers are just downloading files and watching IP TV or whatever that's not were the problems come in. It's when you get into large p2p file sharing networks. when you have hundereds or even thousands of active network connections open.
it's those precious packets per second that have the highest cost.
Routers and switches can only handle so much, when you send and receive at such a high rate, you cause problems for all the customers in an area, such is the way with cable internet. and for that case, most ISP's

People can scream UPGRADE till they're blue in the face, but as a business isn't going to retrofit an entire area with super high powered demodulators and switches and routers, just because one customer decides they have the right to harm the network. That would be just silly.

It's kinda like going to an all you can eat buffet, sure it's says all you can eat, but if you sit there for 8 hours eating everything in sight, one of two things is going to happen, either A.) You're going to get kicked out or B.) The store will have to raise it's prices to cover you.

Now Comcast came up with a solution C.) which is to slow the rate at which the food is replenished for you. So you either get fed up and leave, or you can stay and eat, but you won't harm the other patrons ability to eat too.

Btw the term used wasn't unlimited but unfettered which means

Adjective: unfettered ún'fetud

1. Not bound by shackles and chains

Which their access to the internet is not being impinged upon but instead it's the other customers that are sending data to you through p2p channels that are being throttled back.

Which is fine!
what honestly do you need to download 50gb per month from p2p for?

I know you can download iso's of linux or iso images from microsofts MSDN service through p2p. But if you're consistantly consuming that much bandwidth and open connections, then my friend you'd be hard pressed to find an ISP that won't do something to you.

In the end all this lawsuit will do is cause isp's to put caps on access, if people can't respect other people, and they need their hand slapped and told no, because heaven forbid anyone ever reprimanded them. then so be it!
Then if you want the bandwidth all to yourself and no ISP will let you sign up, then you can purchase a DS3 line or multiple T-1's and see what the true cost of the internet is!

I guess in the end it all comes down to Respect.

Score: 0

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